The Pope’s visit and human rights

16 September 2010 by

The Pope begins a four-day visit to the UK today, the first official trip by a serving Pope for 28 years. The visit has already been controversial, and it raises some interesting questions from a human rights angle.

The leader of the Catholic church has spoken out recently on UK equality laws, complaining that they would run contrary to “natural law”. His comments were most likely directed at the effect of the new legislation on Catholic adoption agencies, making it more difficult for them to turn down gay couples. This could have been the key issue of the trip, but it has been overshadowed by a more difficult and damaging controversy.

Long before the Pope arrived in the UK, a group, notably Richard Dawkins, Christopher Hitchens and Geoffrey Robertson QC, have been campaigning for him to be arrested under international law for the Vatican’s responsibility for child abuse which appears to be rife in the Catholic Church.

The first question arising is whether the charge is factually accurate. The answer is probably yes. It is clear that child abuse has been a huge problem within Catholic institutions throughout the world, not least in the UK, where a number of civil claims have been winding a tortuous route through the courts (see this post).

The next issue is who is to blame, and whether the Vatican in general and this Pope in particular can be said to hold ultimate responsibility for the abuse. The English Court of Appeal recently ruled on an case involving child abuse, and effectively extended the duty of care for abuse by a local priest to the regional Archdiocese (district) by making it vicariously liable. So the English courts seem keen – in line with child protection law in general – to continue to expand the net of responsibility for such crimes in order to increase child protection.

But can responsibility reach the Vatican itself? Geoffrey Robertson QC thinks so, and has timed a new book to coincide with the Pope’s visit – The Case of the Pope – to say exactly that. He argues that ‘Canon law’, the Vatican’s internal legal system, has been allowed to trump criminal law in countries throughout the world. This has, he says, led to an overly lenient and insufficient system for dealing with child abusers. Et voila, vicarious liability.

That is not the end of the story, however. The most pressing question is what can be done even if liability extends to the Vatican, and whether anything can be accomplished during the Pope’s visit. This is perhaps the most interesting legal question, at least from a perspective of international law. Robertson asks whether the Pope can, legally speaking, be consider a head of state, and as such whether he has diplomatic immunity. He argues that the Pope has no such immunity as the Vatican is not a valid state under international law.

This vexed question is revisited by bloggers at the European Journal of International Law in a fascinating post, concluding that whilst the Pope’s visit may raise awareness of the abuse scandal, the legal points made by campaigners are “very weak indeed“.  The Vatican, it is argued, is certainly a state according to international law as instituted by the Lateran Treaty of 1929. Moreover, the fact of statehood “cannot shelter [the Vatican’s] priests from operating under the law of the State where those priests commit crimes. The church may have its law for dealing with these crimes but that law cannot exclude the ordinary criminal law of the country concerned.” So the point may be moot anyway, as priests can usually be prosecuted under the laws of the particular states where the abuse took place.

In any event, the new Government was very quick indeed to change the law in order to make it harder to issue arrest warrants for international dignitaries accused of human rights breaches (see our post). It was speculated that this may have been in part due to the risk of private prosecutions being brought against the Pope when he visited.

So whilst the child abuse scandal will be an important background presence during the Pope’s visit, it will not be placed front and centre as campaigners had hoped. That said, the Pope’s arrest was always extremely unlikely, no matter how clever the lawyers, as they will have been well aware. Meanwhile, the Prime Minister has recently adopted a tell-it-as-it-is foreign policy, and  the Foreign Secretary said yesterday that international human rights promotion would be at the heart of UK’s actions abroad. It is perhaps too much to expect for that lofty aim to extend to the Vatican, which is, after all, a foreign state with serious human rights issues.

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